March 25, 2004
HOSPITALS DONT DESERVE IMMUNITY FOR PEER REVIEW
Hospitals became greatly concerned in 1986 following the Supreme Courts landmark decision in Patrick vs. Burget which involved a physician who was found to be a victim of malicious peer review(1). His competitors attempted to use the peer review process in an anticompetitive and malicious manner. The Supreme Court upheld the lawsuit of a physician who alleged antitrust violations in the termination of his privileges. But organized medicine, including the AMA and the American Hospital Association as well as some members of Congress were alarmed by the precedent of a physician successfully suing a hospital. Consequently the legislature, in conjunction with organized medicine, addressed the issue of peer review with statutory protections for hospitals by Congresss enactment of the Healthcare Quality Improvement Act of 1986 (HCQIA) (2). The stated purpose of HCQIA was to allow physicians the ability to participate in the peer review process without the fear of legal retribution if performed in good faith. For all practical purposes however, HCQIA gives hospitals absolute power to review, punish, suspend and terminate physicians using procedural due process and not substantive due process. Congress as well as organized medicine knew that without accountability, it could only be assumed that that a hospital would routinely do legititimate, fair, balanced and appropriate peer review. This assumption however, has turned out to be problematic. In order to assuage their hypocrisy and blatant disregard of most accepted tenets of human behavior, they set down certain provisions in HCQIA that had to be met to justify the immunity for the hospital and those involved in the peer review process. These provisions are however easily manipulated by hospitals and members of these committees that it is nearly impossible to prove violations unless you have the proverbial smoking gun. According to HCQIA, no member of a peer review hearing is immune from a lawsuit when he or she knows that any information or allegation made about a doctor is false. Additionally, no one on the panel is supposed to be an economic competitor yet the Department of Health and Human Services (HHS) is vague on that provision and leaves it up to the individual state courts which have consistently evaded these issues of HCQIA, 42 U.S.C.11101 et seq. It is a futile and very costly endeavor if an accused physician attempts to establish malice and manipulation of the peer review process since four (4) requirements entitling immunity for a peer review action are quite vague.
In order to obtain immunity, the review by the hospital must be taken:
1) in the reasonable belief that the action is in the furtherance of quality of health care;
2) after reasonable effort to obtain facts of the matter;
3) after adequate notice and hearing procedures are afforded to the doctor involved or after such other procedures are instituted that are fair to the doctor under the circumstances; and
4) in the reasonable belief that the action by the hospital is warranted by the facts known to the hospital after such reasonable effort to obtain facts after following step (3) above. (Sec.11112). (2)
These standards do not create the basis for a cause of action in favor of a physician against a hospital. In addition, the HCQIA standards can be met despite the fact that the hospital may reach a decision which is factually incorrect. In other words, the hospitals actions can be factually wrong and still be immune from liability. Malice is also very difficult to prove since malice is knowledge that an allegation is false or with reckless disregard for whether an allegation is false. The burden of proof is with the plaintiff to show that the defendants acted with actual malice since the courts presume that the defendants acted in the absence of malice. One of the biggest complaints about the HCQIA act of 1986 is the fact that the law never forced that in order to maintain immunity, that the hearings would be based on rules of evidence. Justice Goldberg in Silver v New York Stock Exchange, stated that by affording procedural and substantive due process, underlying facts would be illuminated and therefore prevents erroneous decisions on the merits from occurring.(3)
Where there is no due process the system invites abuse. Absolute immunity invites abuse absolutely. (4) Peer review as presently performed in many institutions fails to protect an investigated physician from committee members having an economic or personal bias. If a challenged physician is a partner or associate, any error that may be done is likely to be considered to have been unavoidable. (5) Change the situation to a solo practioner and peer review has been used to force that competing physician out of practice. (6) Such economic bias in and of itself denies due process.(7) HCQIA also hampers an accused physician from adequately defending himself is that the accused is not permitted to examine or produce his competitors outcome regarding lets say a specific surgical procedure with a known complication rate. This information is protected yet the results may demonstrate that his accusers have worst results than he but will never be able to demonstrate this fact. This is extremely important since according to JACHO, a doctor is not supposed to be investigated if his/her results are similar or better than the other surgeons at that hospital yet hospitals routinely block this information from being reviewed at the peer review hearing.
Organized medicine by accepting and promoting HCQIA, has irreparably destroyed many physician careers and forced their unsuspecting patients into the competitors lair by supporting illegitimate, biased and unfair peer review. Unfortunately but predictably, a mechanism is being flaunted that allows powerful individuals and physician groups to use peer review both as a shield and as a sword. HCQIA legislation could never improve quality of care without having accountability. Hospitals are very good at hiding their problems and outcomes. It is well known that medical staff relationships are often strained by internal power struggles which include competing for patient referrals, credentialing issues, and creating hospital policies. As a result of these ongoing daily occurrences, it is critical that both the treating doctor and reviewing doctor be truly accountable.
If peer review has been such a viable component for quality advancement and improvement, then, it is hard to explain our present situation where at this point, we are bombarded with numerous surveys to include the famous Institute of Medicine study, which revealed that thousands of people die and are hurt, annually, due to problems within hospitals. Physicians who wish to be whistle blowers and improve the hospital environment are sometimes the victims of sham peer review and their reputations are destroyed.(8) One can only wonder how many physicians are hesitant to even voice concerns because of the oppressive political power hospitals have. There is the recent incident in Redding, California with a Tenet hospital where, apparently, hundreds of patients had inappropriate coronary artery bypass surgery and though it appears that there were physicians who knew about it, nobody emphatically voiced any concerns or took any decisive and assertive actions. Although numerous people were being hurt, neither the Medical Executive Committee, nor the Credentials Committee, nor even the Board of Trustees did anything to change the situation.
Organized medicine and Congress agreed to HCQIA based on expediency and exigency without any appreciation of the consequences for physicians, the public and healthcare. They were unwilling to confront the difficult awesome and contentious task of reporting meaningful results to the public. They took the easy way out.
There are numerous examples of very good physicians being abused by an anti-competitive and egregious peer review process but, basically, organized medicine does not really care and their protestations, to the contrary, appear ungenuine, insincere and embrace sophistry. How can an organization voice its concerns for the medical community and repeatedly state that it supports ethical and moral actions by its physicians, when its own in actions, evasiveness and ethical relativism falls so short of that? What has immunity brought us? It surely has not brought anything close to improved quality, and better behavior of many physicians. Apparently, organized medicine feels that peer review has been such a bona fide success that the immunity hospitals have been legislated is warranted and the destruction of a few physicians careers is an acceptable consequence. Geertruyden (9) in his article The fox guarding the henhouse demonstrates how HCQIA along with state peer review statutes have helped proliferate the process of bad faith peer review.
Patients have a right to sue a hospital that they feel has injured or done them harm in some way. Why shouldnt physicians have the same right? Many physicians can relate numerous examples of hospitals that have not used peer review in an appropriate, constructive manner and more times than not fail to take the necessary actions to improve quality frequently permitting physicians who are having problems to continue to practice. What is most disconcerting is that as one views the landscape that is medicine today with its decreasing reimbursements and increasing competition, hospital and physician abuse of peer review will only get worse. As usual, organized medicine is two steps behind the tremendous social, medical and economic forces affecting our country and healthcare.
Doctors sitting on committees involved with quality improvement must have the courage, motivation and desire to make the appropriate changes based on legitimate and thoughtful deliberation devoid of animosity, personal ambition and bias. By allowing absolute immunity without reviewing the accusers false statements and allegations, the following doctors have no recourse to right the wrong and have suffered personal and professional blows to their reputations. Theyve been removed from insurance plans, had their names added to the National Practioner Data Bank (NPDB), lost patients and income, and are paying higher malpractice premiums.
Dr. JP, a neurosurgeon, has had two adverse actions. In one case, his accusers were his neurosurgical competitors. The record shows these physicians lied before and during their testimony against JP. JP never got his hospital privileges, despite being exonerated by the state medical board during their investigation of the cases. JP attempted to sue the hospital and the accusing physiciansat a cost of $300,000 in legal fees-- but was told by the federal court system that the proceedings were protecteddespite the fact that the cases were based on lies. In the second case, Dr. JPs privileges were not renewed at a second hospital because of the events that occurred with the first hospital. This neurosurgery group, again, economic competitors of JP, used peer review to call into question JPs medical abilities and he was denied the renewal of his privileges. Once again, the state medical board in its investigation of the charges exonerated JP and found he was in fact practicing within the standard of care. Both cases of loss of privileges were reported to the NPDB. JP had to report the hospitals actions to his malpractice carriers and the health insurance companies he was enrolled with. At present, the state medical board is unable to reverse any of the hospitals actions or entries in the NPDB despite their investigations that cleared JP of any wrong-doing. The physicians who unjustly accused JP have suffered no legal or professional consequences for maligning another physicians reputation and career.
Dr. MB, an OB-GYN, was suspended by the hospital despite the fact that their main witness (a nurse) lied about orders that MB was later found to have never given. MB, a solo practioner, received no support from the hospitals main OB-GYN group. MB is in the process of suing the hospital for fraud and defamation of character. MB also had to close his practice and relocate to another part of town. The hospital at which MB currently practices needed the OB-GYN coverage and understood the political and economic overtones of the situation at the hospital from which MB was suspended.
Dr. KG, a neuroradiologist, was accused by a competing radiology group of inappropriate X-ray interpretations and was suspended by the hospital. The hospital used an outside reviewer who cleared KG of wrong-doing, but the hospital proceeded in terminating his privileges nonetheless. KG was also cleared by the state medical board and is in the process of suing the hospital for failing to abide by procedural due process and has spent over $250,000 to date.
Dr. MW, a board-certified trauma and critical care surgeon, was suspended by the hospital with assistance from his competitors, who were not board-certified and had limited experience with the types of cases MW performed. Despite being cleared of wrong-doing by two committees who reviewed the cases in detail, the hospitals board of directors, of which his competitors are members, have stated they would accept MWs resignation in exchange for removing its entries from the NPDB.
Dr. CS, a general surgeon, was not re-credentialed as a result of the main general surgical group, his competitors, complaining of CSs complication rate for several procedures. Despite never proving that CSs complication rate was above the norm and outside of the standard of care, they used this as an excuse to not re-credential CS. The state boards investigation of CS found no evidence of wrong-doing.
Dr. LP, a cardiologist, was accused by his competitors of inappropriate cardiac care of several patients during LPs re-credentialing period. He was cleared by the state medical board and is currently suing the hospital for failing to abide by procedural due process.
Dr. RC, a neurosurgeon, was not elevated to active staff after his competitor, who was also chief of staff, initiated a peer review action base on allegations of substandard care. Even though he was RCs chief competitor and chief of staff, RCs accused did not recuse himself from the proceedings. No outside independent expert reviewed the cases and the hospitals testimony was provided by the chief of staff/competitor. The state medical board cleared RC, but his privileges were never reinstated by the hospital.
The experiences of these doctors share some common elements:
1.) They are solo practioners who are either facing anti-competitiveness from a group or from someone in an administrative position at the hospital who has more political clout than most attendings
2.) These practitioners are usually the new kids on the block and were becoming a threat to the established group practices
3.) These practioners were accused of medical wrong-doing, which could not later be substantiated through the medical record or current literature and research
4.) The proceedings against these practioners occurred in a vacuum. The accusers are not required to provide corroborating testimony from outside experts or the medical literature to support their allegations. Despite the accused physicians providing outside evidence to support the care they provided, their experts are summarily disregarded and the hospital proceeds with its goal of removing the physician from its staff. The hospital and its staff are never held accountable for their methods, which can include perjury, nor their decisions, which include without exception, the accused physicians loss of earning potential and reputation.
5.) All of these physicians were cleared of wrong-doing by their state medical board. Yet the board is powerless to require the hospital to reinstitute the physicians privileges or to require the hospitals to remove their adverse decision from the NPDB.
6.) All of the physicians were attacked by their economic competitors who were able to do so with complete immunity.
7.) According to the Joint Commission of Accreditation of Hospitals (JCOAH), any doctor subjected to peer review should have his/her complication rates compared with other physicians in the hospital performing the same procedure(s). In all the above cases, the hospitals refused to submit this date when requested by the accused physicians.
There is no perfect solution to this difficult situation unless the judicial system punishes those responsible for attempting to destroy the accused doctor. The goal of including monetary damages by removing immunity is not made solely to challenge any and all adverse decisions but in fact is intended to motivate hospitals to find the truth by using outside consultants instead of the physicians competitors and establish hospital regulations that promote physician rotations on the various committees within a hospital environment. The common practice of influential doctors remaining on certain committees may not change by this removal of the immunity but they will think twice before abusing power under the umbrella of peer review immunity. Hospital administrators will no longer rely on their favored staff members but rather be more democratic and equitable in their interactions. The AMA and AOA can no longer acquiesce to hospitals. Ultimately, the AOA and AMA must speak up for all physicians and try to establish a system that is best for the public and also fair to all physicians. Anything less leads us to our present situation where we are squandering our professionalism and collegiality with physicians scrambling and vying for their economic piece of the pie.
One of the most disturbing, unexpected and unintended consequences of HCQIA is that many times it actually hinders and thwarts, contrary to its intent, reasonable peer review actions. All HCQIA has done is basically foster mediocrity and acceptance of repeated poor results by some of its staff while setting up other staff members for political and economic homicide. Doctors, who routinely and regularly do good work with the patients best interest, are hurt and stifled by this easily corrupted system. An open, fair, balanced and accurate reporting of results to the public would benefit the competently motivated physician and be a detriment to other members of our profession that who often practice in an unacceptable manner, hiding behind the labyrinth of hospital peer review immunity and frequently behaving selfishly, unethically and dishonestly.
References
1) 486 U.S. 94 (1986)
2) Health Care Quality Assurance Act of 1986, 42USC. 1111 et.Sq.
3) Silver v New York Stock Exchange, 373 US 341 (1963)
4) Board of Regents v Roth, 408 US 564 (1972)
5) Segall S., Pearl W., Should Due Process Be Part of Hospital Peer Review
6) Green R., Hospital Peer Review in a Hostile Environment. J Med Assoc Ga., 1987; 76: 138-40
7) Tumey v Ohio, 273 US 510 (1927)
8) Twedt S., Cost of Courage, Pittsburgh Post-Gazette, October 2003
9) Geertruyden, Yann H.H., The Fox Guarding the Henhouse, Journal of Contemporary
Health Law & Policy, Winter 2001
Roland Chalifoux Jr., D.O.
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